State v. Wood

2023 Ohio 2441

Opinion

[Cite as State v. Wood, 2023-Ohio-2441.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 6-23-05

v.

RICKY LEE WOOD, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20222165

Judgment Affirmed in Part and Reversed in Part

Date of Decision: July 17, 2023

APPEARANCES:

Michael B. Kelley for Appellant

McKenzie J. Klingler for Appellee Case No. 6-23-05

MILLER, P.J.

{¶1} Defendant-appellant, Ricky L. Wood (“Wood”) appeals the January 24,

2023 judgment entry of sentence of the Hardin County Court of Common Pleas.

For the reasons that follow, we affirm in part and reverse in part.

Background

{¶2} On November 16, 2022, Wood was indicted on a single count of public

indecency in violation of R.C. 2907.09(A)(2), (C)(3), a fifth-degree felony. On

December 5, 2022, Wood appeared for arraignment and entered a not guilty plea to

the charge.

{¶3} Pursuant to a negotiated-plea agreement, on January 24, 2023, Wood

appeared for a change-of-plea hearing where he entered a guilty plea to the count in

the indictment. The trial court accepted Wood’s plea and found him guilty. At the

agreement of the parties, Wood waived a presentence investigation and the matter

proceeded immediately to sentencing. The trial court sentenced Wood to 11 months

in prison and ordered him to pay a fine. Additionally, the trial court ordered Wood

to “[p]ay court costs, including court appointed counsel fees which are hereby

Ordered taxed as costs * * *.” (Docket No. 19). The trial court also found the

commission of the instant offense occurred while Wood was on post-release control

(“PRC”) supervision. The trial court terminated Wood’s PRC supervision and

ordered he serve an additional term of one year in prison prior to and consecutively

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to the 11-month prison term imposed in the instant case. That same day, the trial

court filed its judgment entry of sentence.

{¶4} Wood filed a notice of appeal on February 7, 2023. He raises two

assignments of error, which we address together.

First Assignment of Error

The trial court abused its discretion in sentencing Appellant to a prison term which was not supported by the record which is an abuse of discretion and plain error.

Second Assignment of Error

The trial court erred when it ordered the payment of court- appointed counsel fees as part of Appellant’s sentence.

{¶5} In his first assignment of error, Wood argues that the trial court erred

by imposing a prison sentence rather than a term of community control. In his

second assignment of error, Wood alleges that the trial court erred by ordering the

payment of his court-appointed counsel fees as part of his sentence.

Standard of Review

{¶6} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

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at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Relevant Authority

{¶7} “‘Trial courts have full discretion to impose any sentence within the

statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, ¶

9, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9. A

sentence imposed within the statutory range is generally valid so long as the trial

court considered the applicable statutory policies that apply to every felony

sentencing, including those contained in R.C. 2929.11, and the sentencing factors

of 2929.12. See State v. Watts, 3d Dist. Auglaize No. 2-20-10, 2020-Ohio-5572, ¶

10 and 14; State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.

{¶8} R.C. 2929.11 provides, in pertinent part, that the “overriding purposes

of felony sentencing are to protect the public from future crime by the offender and

others, to punish the offender, and to promote the effective rehabilitation of the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A). To achieve the overriding purposes of felony

sentencing, R.C. 2929.11 directs courts to “consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or both.”

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Id. In addition, R.C. 2929.11(B) instructs that a sentence imposed for a felony “shall

be reasonably calculated to achieve the three overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences

imposed for similar crimes committed by similar offenders.”

{¶9} “In accordance with these principles, the trial court must consider the

factors set forth in R.C. 2929.12(B)-(E) relating to the seriousness of the offender’s

conduct and the likelihood of the offender’s recidivism.” Smith at ¶ 10, citing R.C.

2929.12(A). In addition, the trial court must consider “the factors set forth in [R.C.

2929.12(F)] pertaining to the offender’s service in the armed forces of the United

States.” R.C. 2929.12(A). “‘A sentencing court has broad discretion to determine

the relative weight to assign the sentencing factors in R.C. 2929.12.’” Smith at ¶

15, quoting State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 18 (6th

Dist.), citing State v. Arnett, 88 Ohio St.3d 208, 215 (2000).

Analysis

{¶10} The trial court sentenced Wood to 11 months in prison for fifth-degree

felony indecent exposure. For fifth-degree felonies, “the prison term shall be a

definite term of six, seven, eight, nine, ten, eleven, or twelve months.” R.C.

2929.14(A)(5). Thus, the trial court sentenced Wood within the statutory range for

a fifth-degree felony.

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{¶11} In addition, the record reflects that the trial court considered R.C.

2929.11 and 2929.12 when fashioning Wood’s sentence. Specifically, at the

hearing, the trial court stated it “looked at the principle[s] and purposes of

sentencing pursuant to the Ohio Revised Code, and have, to the best of my ability,

balanced the seriousness and recidivism factors in this case.” (Jan. 24, 2023 Tr. at

27). In its dialogue with Wood, the trial court addressed the seriousness and

recidivism factors in some detail as they related to the instant case. (Id. at 25-29).

Moreover, in its judgment entry of sentence, the trial court indicated that it

“considered the purposes and principles of sentencing in Revised Code Section

2929.11 and the appropriate factors under [Revised Code] Section 2929.12.” (Doc.

No. 19). The trial court further specified it “finds that a prison sentence is consistent

with the purposes and principles of sentencing under Ohio Revised Code Section

2929.11 because a prison sentence is commensurate with the seriousness of the

offender’s conduct because it is reasonably necessary to deter the offender and in

order to protect the public from future crime, and because it would not place an

unnecessary burden on governmental resources.” (Id.). Therefore, because Wood’s

prison sentence is within the applicable statutory range and the record supports that

the trial court fulfilled its obligation of considering R.C. 2929.11 and 2929.12,

Wood’s prison sentence is valid. See Watts, 2020-Ohio-5572, at ¶ 14.

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{¶12} Yet, Wood argues his 11-month prison sentence for his public-

indecency conviction is unsupported by the record or contrary to law because none

of factors in R.C. 2929.12(B) indicating that the conduct is “more serious” applied

to the instant case. Wood also argues that the trial court improperly weighed the

recidivism factors, particularly in light of Wood’s expressed desire to participate in

a treatment program to address his underlying issues. Additionally, Wood suggests

the nearly four years he was on PRC without a violation should weigh heavily

against the imposition of a prison sentence.

{¶13} However, the record belies his claims. At the sentencing hearing, the

trial court recognized Wood’s statement of remorse and desire to engage in

treatment appeared to be sincere. (Jan. 24, 2023 Tr. at 25). Yet, the trial court

acknowledged it had to balance Wood’s sincerity with its obligation to protect the

community. (Id.). After reviewing Wood’s criminal record in great detail, the trial

court recognized that Wood’s criminal history displayed an obvious “serious

pattern” of sexually-motivated behavior which made the instant “relatively minor

offense” “serious in the eyes of the Court.” (Id. at 26). Accordingly, the trial court

concluded that, in balancing the purposes and principles of felony sentencing,

Wood’s “recidivism factor is great and outweighs the other considerations for the

Court” in determining whether to impose a term of prison or community control.

(Id. at 26-28).

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{¶14} Further, although “R.C. 2953.08(G)(2)(a) permits an appellate court

to modify or vacate a sentence if it clearly and convincingly finds ‘the record does

not support the sentencing court’s findings under’ certain specified statutory

provisions[,] * * * R.C. 2929.11 and 2929.12 are not among the statutory provisions

listed in R.C. 2953.08(G)(2)(a).” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-

6729, ¶ 28. Moreover, “an appellate court’s determination that the record does not

support a sentence does not equate to a determination that the sentence is ‘otherwise

contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 32. Thus,

R.C. 2953.08(G)(2) “does not provide a basis for an appellate court to modify or

vacate a sentence based on its view that the sentence is not supported by the record

under R.C. 2929.11 and 2929.12.” Id. at ¶ 39. “[A]n appellate court errs if it * * *

modifies or vacates a sentence ‘based on the lack of support in the record for the

trial court’s findings under R.C. 2929.11 and R.C. 2929.12.’” State v. Dorsey, 2d

Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17, quoting Jones at ¶ 29.

{¶15} Accordingly, even if we were to agree with Wood that his sentence is

not supported by the record under R.C. 2929.11 and 2929.12, which we do not, we

could not vacate or modify his sentence on that basis. As discussed above, Wood’s

prison sentence is within the applicable statutory range, and it is clear the trial court

considered R.C. 2929.11 and 2929.12 when fashioning Wood’s sentence. Hence,

Wood’s prison sentence is not clearly and convincingly contrary to law, and it must

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therefore be affirmed. See State v. Slife, 3d Dist. Auglaize No. 2-20-17, 2021-Ohio-

644, ¶ 17.

{¶16} Wood’s first assignment of error is overruled.

{¶17} We next address Wood’s second assignment of error, wherein he

contends the trial court erred by ordering Wood to pay the costs of his court-

appointed counsel. R.C. 2941.51 addresses counsel for indigent defendants in

criminal cases. In relevant part, R.C. 2941.51(A) provides, “[c]ounsel appointed to

a case * * * shall be paid for their services by the county the compensation and

expenses that the trial court approves.” R.C. 2941.51(D) further provides:

The fees and expenses approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the costs of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay. * * *

{¶18} To the extent Wood argues the trial court was required to hold a

hearing before ordering he pay the costs of his court-appointed counsel, we find his

argument unavailing. In State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786, the

Supreme Court of Ohio held that “under R.C. 2941.51(D), a trial court in a criminal

case may assess court-appointed-counsel fees against a defendant without making

specific findings on the record to justify the fee assessment.” Id. at ¶ 2. However,

the Court did note “the best practice is for the trial court to articulate its findings on

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the record for the benefit of the parties and to allow for more meaningful appellate

review.” Id.

{¶19} Here, the parties jointly agreed that Wood would pay court-appointed-

counsel fees. (Jan. 24, 2023 Tr. at 5-7). Moreover, the trial court engaged in a

dialogue with Wood regarding his ability to pay court-appointed-counsel fees and

additional financial sanctions, as the trial court ordered.

[Trial Court]: Do you understand that since the parties have agreed to this, I will order, if you enter a plea, that you pay the court costs, prosecution expenses, and that you pay the attorney fees for your counsel?

[Defendant]: Yes, sir.

[Trial Court]: I don’t know what all that totals up to, but whatever it is, you’ll be ordered to pay that. Since you agreed to that, are you telling me that once you get out of prison[,] if you go to prison or if you go to jail[,] that you have the wherewithal if you’re set up on a plan to pay those expenses?

[Defendant]: Yeah.

(Id. at 11).

{¶20} Accordingly, the record does include some indication of Wood’s

ability to pay the court-appointed-counsel fees. Although the trial court did not

conduct a separate hearing relating to Wood’s current or future ability to pay the

court-appointed-counsel fees, it was not required to do so. State v. Barnett, 3d Dist.

Hardin No. 6-22-16, 2023-Ohio-678, ¶ 19.

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{¶21} Wood also argues that the trial court erred by ordering the payment of

court-appointed-counsel fees as part of his sentence. We agree.

{¶22} Here, the trial court’s judgment entry of sentence states as follows,

“Defendant is sentenced to * * * [p]ay court costs, including court appointed counsel

fees which are hereby Ordered taxed as costs and paid by Defendant.” (Doc. No.

19).

{¶23} In Taylor, the Supreme Court of Ohio stated “[t]he General Assembly

has * * * been quite clear that court-appointed counsel fees are not to be assessed as

a part of the defendant’s sentence.” Taylor, 2020-Ohio-6786, at ¶ 34. The Court

recognized “R.C. 2941.51 explicitly states that court-appointed-counsel fees shall

not be taxed as costs, which are required under R.C. 2947.23 to be included as a part

of the defendant’s sentence.” Id.

{¶24} The Court explained that court-appointed-counsel fees “may be

assessed at the sentencing hearing, [however], they cannot be included as part of the

offender’s sentence.” Id. at ¶ 37. The court clarified that “if the assessment of the

fees is included in the sentencing entry, the court must note that the assessment of

the court-appointed-counsel fees is a civil assessment and is not part of the

defendant’s sentence.” Id.

{¶25} Here, the language of the judgment entry of sentence indicates the

court-appointed-counsel fees were assessed as costs as part of Wood’s sentence.

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Accordingly, that limited portion of Wood’s sentence is contrary to law. See

Barnett, 2023-Ohio 678, at ¶ 23-24.

{¶26} Therefore, we sustain Wood’s second assignment of error and vacate

the portion of the January 24, 2023 sentencing entry imposing court-appointed-

counsel fees as court costs against Wood.

Conclusion

{¶27} Having found error prejudicial to the appellant herein in the particulars

assigned and argued, we affirm the judgment of the Hardin County Court of

Common Pleas in part and reverse in part.

WALDICK and ZIMMERMAN, J.J., concur.

/jlr

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